Madugba, R (on the application of) v Secretary of State for the Home Department

Where an immigration officer cancels leave to enter under paragraph 2A of Schedule 2 to the Immigration Act 1971, a resulting deemed refusal of leave to enter falls within section 92(3B) of the Nationality Immigration and Asylum Act 2002. Any appeal must therefore be pursued from outside the United Kingdom. There is no arguable in-country right of appeal in such circumstances. The court may refuse an adjournment where proceedings have already been delayed, the claimant’s representatives repeatedly change, and the claim has no apparent legal merit. On the facts, the immigration officer’s decision was also found to be Wednesbury reasonable.

The claimant sought judicial review after returning to the United Kingdom from Nigeria and having his leave to enter cancelled by an immigration officer. Permission had been granted on the issue whether he had an in-country right of appeal against cancellation of his student leave. The claimant sought a further adjournment after changing solicitors shortly before the hearing. The central issue was whether section 92 of the Nationality Immigration and Asylum Act 2002 permitted an in-country appeal against the deemed refusal arising from cancellation under paragraph 2A of Schedule 2 to the Immigration Act 1971.

1. The application for an adjournment was refused. The proceedings had already been substantially delayed, the case had been expedited, the claimant had repeatedly changed solicitors shortly before hearings, and no arguable merit had been identified.
2. Section 92(1) of the Nationality Immigration and Asylum Act 2002 generally prevents an appeal under section 82(1) while the appellant is in the United Kingdom. Section 92(3B) removes the relevant exception where the refusal of leave to enter is a deemed refusal under paragraph 2A(9) of Schedule 2 to the Immigration Act 1971, resulting from cancellation under paragraph 2A(8) on the grounds specified in paragraph 2A(2A).
3. The claimant’s case fell within section 92(3B). The appeal was consequently required to be pursued outside the United Kingdom. There was no arguable in-country right of appeal.
4. In any event, the evidence that the claimant had worked for approximately 75 hours per week over two to three years, while apparently studying, provided a rational basis for the immigration officer’s decision.
5. The claim was dismissed. The claimant was ordered to pay the defendant’s costs, but costs incurred during periods when he was legally aided were not to be enforced without leave of the court.

First-instance judicial review decision. The judgment refers to an earlier decision by Mr Justice Burton in Aiyegbeni, Awosanmi and Rashid v Secretary of State for the Home Department [2009] EWHC 1242 (Admin), which had not been appealed.